Analysis: A word game over “privacy”

Posted Tue, March 1st, 2011 12:35 pm by Lyle Denniston

Analysis

In 12 pages of teacher-like explanation of the varying meaning of words, the Supreme Court on Tuesday told business companies organized as corporations the sad news that they are not entitled to the same privacy as human beings enjoy, at least when it comes to records that corporations have handed over to federal government agencies. But, at the end of the 12 pages, in what read like an intentionally clever gesture to make the ruling easier to accept, Chief Justice John G. Roberts, Jr., actually implied that corporations do have feelings, and are therefore capable of being offended. “We trust,” the concluding line said, “that AT&T will not take it personally.” In fact, that seemed contradictory to the ruling itself.

AT&T, of course, had paid its lawyers to go before the Court and argue that corporations do have “personal privacy,” just as humans do, and are therefore capable of being embarrassed by public disclosure of such things as internal e-mails. The Court rejected that legal claim, interpreting the Freedom of Information Act’s protection of “personal privacy” as reserved for humans, when a government agency comes into possession of private documents during an official investigation. (The vote was unanimous, but Justice Elena Kagan did not take part in the ruling in Federal Communications Commission v. AT&T Inc., 09-1279).

As he had done during oral argument in January, the Chief Justice used his opinion to discuss how words and their derivatives can mean very different things, or very similar things, and so need to be read in context. “Corny,” for example, has little to do with “corn,” the opinion suggested. When it comes to the FOIA, the opinion said, there is just no convincing evidence that “personal privacy” was something that the fictional being of a corporation could experience, at least as Congress saw it when it wrote FOIA. The Court conceded that corporations are, in some sense, “persons,” and, they do have, in some sense, “privacy,” but it said that FOIA did not put the two together in a phrase to guarantee them “personal privacy.”

Although there is a great deal of debate in public discourse about whether corporations should continue to be treated, under the Constitution, as “persons” (something the Court itself did do, of course, in its ruling last year in a deeply controversial campaign spending case), Tuesday’s opinion cautioned that “this case does not call upon us to pass on the scope of a corporation’s ‘privacy’ interests as a matter of constitutional or common law. The discrete question before us is instead whether Congress used the term ‘personal privacy’ to refer to the privacy of artificial persons” in FOIA. Constitutional cases that AT&T had relied upon to help make its privacy argument, the Court said, “are too far afield to be of help here.”

The decision provided an authoritative interpretation of one provision of FOIA: its Exemption 7(C). That provides that the usual legal duty of government agencies to make records and documents they have available to the public does not apply when an investigating agency had gathered “law enforcement records,” which, if disclosed, “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The FCC had gathered a variety of AT&T’s internal records during an investigation, and, then, business rivals of AT&T, using FOIA requests, sought access to those files. The FCC withheld some, for such reasons as protecting trade secrets or protecting “personal privacy” of some AT&T employees, but it said the exemption did not insulate the corporation itself from disclosures that might intrude on “personal privacy.” The Third Circuit Court, however, disagreed, and read the FOIA exemption to cover “personal privacy” for the corporation, too. That result was overturned Tuesday.

As the reader of the opinion works through it, the document turns into a somewhat repetitive recitation of the theme that the notion of “personal privacy” just does not seem to fit a corporation. For example, it suggested at one point, a corporation could well have a “tragedy” in its corporate life, but “we do not use the word ‘personal’ to” describe it. In fact, it went on, “we often use the word ‘personal’ to mean precisely the opposite of business-related” — as with personal expenses versus business expenses, or personal life versus work life.

The bottom line, a reader might well expect, would then wrap up the opinion along these lines: AT&T might well be disturbed by this conclusion, but as a corporation it is not capable of experiencing personal sensibilities. The Chief Justice, though, seemed to be suggesting the opposite: if one “trusts” that someone will not take bad news personally, one is conceding that, actually, they do have feelings that might be hurt.

The version the Chief Justice chose, though, may be more felicitous English composition.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

4/20Johnson v. United States Whether possession of a short-barreled shotgun is a violent felony, leading to a longer prison term as a career criminal.

4/21McFadden v. United States A federal prosecutor’s duty to prove that a suspect knew that a substance was an illegal substitute for a banned drug.

4/22Horne v. Department of Agriculture The federal government’s duty to pay raisin growers for an order requiring removal of part of a year’s crop from the market to stabilize prices.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.